LOVE AAJ, KAL RAPE ?
If you love her and leave her, have you raped her? In a world where a woman meets a man on equal terms, can a reciprocal sexual act be later framed as rape? British hockey player Ashpal Kaur has accused the Indian hockey captain Sardar Singh of sexual harassment and attempt to rape. In her version, he promised to marry her, had a long relationship with her, forced her into an abortion, and finally abandoned her. Her charge has once again drawn attention to the “breach of the promise to marry”, which can, in certain circumstances, amount to rape in India.

Rough estimates suggest that “breach of promise to marry” cases make up about 20-30% of reported rapes. A rape charge hinges on the absence of free and informed consent. “Under Section 90 of the IPC, consent given under a misconception of fact is tainted consent,” says Suneita Ojha, a lawyer who works on family law. The question of whether rape is sex by force, or sex without mutual consent, has vexed legal systems around the world. In India, “the 2013 amendment to rape law defined what unequivocal consent means,” says Mrinal Satish, professor at the National Institute of Law, Delhi.

Some jurisdictions have historically allowed damages for broken engagements, but these so-called heart-balm cases are rare. In India, though, the “breach of promise to marry” and “rape by deception” are legal categories that come seamlessly together, because sexuality is yoked to marriage, and any other expression of it is seen as a matter of shame and social ruin for the woman.

The police are often eager to file these FIRs, explains Satish as “they reflect patriarchal ideas of the value of marriage, and these cases are relatively easy to investigate, since the man does not deny that the act occurred.”

But while the media makes much of these cases, like those of film director Madhur Bhandarkar or Union minister Sadananda Gowda’s son Kartik, and assume that ordinary jiltings are regularly treated as rape, the courts are increasingly unlikely to punish a man for a consensual relationship.

As a 2013 study of Delhi’s district courts by Rukmini Shrinivasan of the Hindu revealed, there were 109 “promise of marriage” instances in the 460 rape cases fully tried in court. Out of those, only 12 resulted in conviction, and they involved outright deception, like the man being already married or having conducted a fraudulent marriage with the victim. “When the cases result in acquittals, it feeds the entire rhetoric about women filing false cases out of spite,” says Satish.

While patriarchal protectiveness plays a part in these rulings, the courts have increasingly tended to tell women that they knew what they were getting into. In Uday vs State of Karnataka, the Supreme Court ruled against the woman, saying that she may have wanted to believe her former lover but there was no misconception of fact. On the other hand, in Deelip Singh v State of Bihar, the court ruled that consent obtained by a false promise is vitiated, and held that it was rape. In 2013, the Bombay High Court observed that every breach of promise to marry could not be considered rape, in an increasingly permissive society where pre-marital sex was more common.

Many lawyers and activists feel rape laws should not be used to regulate intimate arrangements and “protect” a “dishonoured” woman. “If we’re now speaking in terms of a woman’s sexual autonomy, then this approach doesn’t fit,” says lawyer Vrinda Grover. In her view, this attitude of protection doesn’t square with the idea of an adult woman who enters a relationship out of her own volition.

But on the other hand, for many women who file such rape charges, the stigma and social insecurity is all too real. If one gets behind the statistics, most of these cases hide a long history of exploitation and inequality, says Audrey D’mello of Majlis Legal Centre, which works with survivors of sexual violence. In a study of 644 victims, they found that “many of these girls are minors, or they are pregnant. They seek escape from an abusive family, with a man who promises marriage. The rape charge is a last stab at justice,” she says.

While many Indian women may indeed be more materially affected by a broken relationship, there should be civil remedies for this distress. “There are differences in the social consequences for men and women,” Grover says, but in her view, women should sue for damages rather than pursue rape charges.

India is home to the whole spectrum of sexual and domestic situations. There are hookups and baggage-free unmarried relationships, but there are also women mired in sexist families and societies who enter into coercive sexual arrangements and then punished for it. And so, as the Bombay HC said, there is no readily available straitjacket to solve them all.